Dale T. White, Five Restatements: Charting the History of the Law on State Taxation of Non-Tribal Members in Indian Country, 2022 Wis. L. Rev. 330 (2022)
Abstract
Last fall I spoke at the Wisconsin Law Review’s Symposium on the Restatement of the Law of American Indians. My subject was Chapter 3, Section 30 of the Proposed Final Draft on the scope of state taxation of nonmember activity in Indian country. My focus was on two U.S. Supreme Court cases, Moe v. Confederated Salish & Kootenai Tribes and Washington v. Confederated Tribes of the Colville Indian Reservation, and how those decisions were driven in part by the fearmongering of aggressive state attorneys general. The fear being spread was of tribes and their members using sales tax exemptions to create tax havens that would damage state economies. The Proposed Final Draft rule, although accurately restating the law, was in my opinion an example of a result- driven Supreme Court decision that will now become blackletter law.
Afterwards, I soon discovered my thesis was not exactly earth- shattering. Many scholars and practitioners have commented over the years on the abject lack of legal reasoning in Moe and Colville, just as many have criticized Supreme Court Indian law jurisprudence as being based upon the Justices’ personal, ad hoc, and political views about what the law “ought to be” instead of what the law is. That a number of foundational principles of Indian law are grounded on prejudice, injustice, and colonial or neo-colonial beliefs is widely acknowledged. My friend Walter Echo-Hawk even wrote a book about it. It is no surprise that bad Indian law decisions might someday be turned into blackletter law.
Rather than retrace old ground, I shifted my focus to a broader examination of the origins of the Proposed Final Draft rule on state taxation of nonmember activity in Indian country and instead chart the history of the law and its impact on Indian reservation economic development. There has been a complete reversal of the law from its origin in 1832, when the Supreme Court made it very clear in Worcester v. Georgia that states have no authority at all within Indian country. In contrast, under the Proposed Final Draft rule, states have presumptive authority to tax nonmembers in Indian country subject to federal Indian law preemption analysis. My Essay would chart the history of the law to examine how this reversal occurred and how this may have been influenced by Moe and Colville. The change in the law would be illustrated by hypothetical “Restatements” of the law at points in time between 1832 and 2022, hence the title of the Essay: “Five Restatements.”
